The rise of the rented e-scooter has also brought safety fears and injury-related lawsuits. What happens when a new mobility mode meets the American legal system?

It was a freezing night—my hands were numb, my toes icy—but I’d wanted to call her, my college roommate, on the way home from work, so I took a scooter instead of a subway. I figured I could jam my wireless headphones in, talk, and ride. Before you ask: No, I was not wearing a helmet, and yes, it was winter-dark at 7 o’clock.

So I was stupid, maybe, and distracted, definitely. But as I zipped through Washington D.C.’s Dupont Circle—where just this September a scooter rider died after being struck by an SUV—my Bird suddenly slowed, then stopped entirely. It fell, and I fell with it. The call was dropped. “Holy shit Sarah are you okay,” Grace texted.

I’ve been an avid user of shared electric scooters since the things descended on D.C. last spring, accepting the risk therein. I’d hopped on various models with broken brakes before, only to swiftly hop off and park safely. I’d heard others complain about sticky accelerators. This sudden motor failure, however, was new. It didn’t seem to be a battery issue—the charge had been at 75 percent when I hopped on; 66 percent when I locked it, shaken, after. Something had gone very wrong.

When the issue of e-scooter safety is raised—and, if you spend any time talking to people in cities where this polarizing new urban mobility mode has emerged, it will—scooter fans like to counter with this stat: Cars kill 40,000 Americans a year, and they emit climate-warming gases while doing it. While scooter-related emergency room visits appear to be on the rise since these little dockless vehicles hit America’s roads, hard numbers about their serious injury rate remain elusive. The CDC plans to conduct its first epidemiological scooter study in Austin, Texas, to better quantify the public health risks they may or may not pose.

Some scooter-safety panic might be attributable to their sheer novelty. We’ve become immune to the daily toll of automotive crashes. And disruptive transportation technologies often brings fears, some legitimate: Early airplanes were said to upset chickens on the farms below; 19th-century bicycles afflicted riders with “bicycle face,” doctors once warned. But part of successfully introducing a new mode of transportation—especially one with revolutionary environmental potential—is figuring out how to get its users from point A to B intact, preferably without annoying or hurting others in the process.

Along with the e-scooter backlash have come the lawsuits. Perhaps the most high-profile case was filed in October, when Bird and Lime, along with two manufacturers of the vehicles they use, Segway and Xiaomi, became the subject of a putative class action suit filed in Los Angeles County Superior Court. Nine plaintiffs accused the companies of “indiscriminate, negligent, grossly negligent and/or unlawful ‘deployment’ … of fleets of defective” scooters in the city. The case is still pending.

Faced with legal challenges like this and threats of more citywide bans, the scooter industry has lately become more intentional about making safety a priority. Lime recently released an upgraded Gen 3 model with stronger safety features, like bigger wheels and extra rear brakes. Birds’ new Bird Zero models have gotten more rugged, too. In August, Bird also announced a plan to launch a Global Safety Advisory Committee focused on both rider and pedestrian wellbeing. To address charges that riders endanger sidewalk users, the company pledged to donate $1 per day per vehicle to building protected bike lanes in the cities where it operates.

Indeed, the overall scooter industry’s approach to safety has generally seemed somewhat more in the “move fast and break things” spirit. The user agreements that all riders must sign are clear about rider risk assumption: “By choosing to ride a Vehicle, Rider assumes all responsibilities and risks for any injuries or medical conditions,” Bird’s agreement reads. Riders must agree that they understand that the activity they’re engaging in is potentially dangerous, and that they’re deciding to play anyway.

The major companies—such as Bird, Lime, and Scoot—do have in-app safety tutorials, though you can scroll through quickly before registering. In those same user agreements, riders are encouraged to wear helmets; research shows, however, that companies’ social media accounts rarely promote the practice. More paradoxically, Bird handed out 50,000 free helmets to riders this year—even as it allegedly served as a key sponsor behind a California bill removing the helmet requirement for scooter-riders over 18, which passed this September. “The outcome of this legislative process will not change Bird's ongoing efforts to promote the safe riding of our vehicles. We strongly encourage all riders to wear helmets,” a Bird spokesperson said.

As an Atlanta blogger who broke his arm after a scooter mishap wrote, “Their wide availability on street corners downtown sends a powerful presumptive message about the safety of dockless stand-up scooters: if they’re everywhere, they can’t be that hard to use, can they?”

It’s hard out there for a scooter. A pair of Spin vehicles get prematurely recycled in D.C. (David Dudley/CityLab)

There are other issues. The dockless vehicles are parked on the street and subject to all manner of ill-treatment from salty passersby, which can affect whether they are safely rideable.And maintenance practices vary from company to company. Lime, for example, hires mechanics to keep their little vehicles running. Bird, meanwhile, has more of a gig-economy approach: freelance mechanics, trained via YouTube, who get a bounty for each fixed ride. Spin, too, works with independent contractor mechanics in most markets (though not all), according to a spokesperson.

All this adds up to a lot of unanswered questions about the long-term status of electric scooters in U.S. cities, which are under pressure to both shrink their transportation-related carbon footprint and meet Vision Zero pedestrian safety goals. On those fronts, scooter-sharing could be part of the fix—but only if it’s not part of the problem.

“I share the frustration that a new technology—which, if widely deployed and given the same amount of infrastructure support that cars have, could ultimately be much safer—is being negatively compared to an existing transportation technology that is dramatically more dangerous in frequency and severity than scooters,” said Bryant Walker Smith, co-director of University of Michigan’s Project in Law and Mobility.

Mix together uneven rider compliance, unpredictable maintenance, and unsafe streets? Scooter accidents happen. And when they do, figuring out where responsibility lies can be complicated.

The blame game

In my rush to get out of the way of incoming traffic after the fall, I accidentally rated my ride five stars before being ushered into a nearby hotel by two nice women, who set me up in the lobby to compose myself. About 20 minutes later, I went back outside to find that the Bird was gone. Someone else must have scooped it up to finish out their own commute.

After shooting off a quick message explaining the situation to Bird’s help desk, I got an extremely sympathetic note from someone named Chet (“Most importantly, how are you doing now?”), who assured me that they’d take the Bird offline. That’s when I started thinking about the question of fault.

As a distracted and helmet-less rider, I clearly shared some of the blame for the fall.But the vehicle itself did malfunction. Also, there was the issue of the aftermath:What if I’d inadvertently facilitated someone else’s ride on a broken scooter, and their fall ended up being even worse? Would it be Bird’s fault for putting a balky vehicle on the road, mine for failing to report the crash immediately, or the next rider’s for getting on a skimpy chunk of electrified plastic in the first place?

The next day, I called Paul Zukerberg, an attorney for the D.C. firm Zukerberg and Halperin Associates, which has an entire page of its site devoted to scooter injuries. I assured him I didn’t want to sue, and that I had no medical bills to cover. But if someone hypothetically did, “there’s not much they can do,” he told me.

Because it’s such a new landscape, the body of precedent is small. Zukerberg’s firm is in the process of representing one person who was “very, very seriously injured” on a scooter in D.C., he says. But “the duties and responsibilities of the various parties with regard to these various parties are not at all clear.” And applying traditional categories of law to new inventions and public policy decisions is difficult to do gracefully.

Lawsuits against the scooter companies don’t have toprevail in the courtroom to damage scooter companies’ reputations, and in turn their bottom line. “A lot of new technologies involve telling a new story,” said Smith. “Or telling the same old story in a different way. And litigation can both shape and reflect that narrative.” For an industry to be credible—to seem safe, or responsible, or, crucially, cool—companies have an interest in avoiding lawsuits that question that image, he says.

“Most attorneys in L.A. are not taking these cases,” said Lerer. “They’re worried about that user agreement.”

The L.A. County suit represents more of an individualized backlash led by other road-and-sidewalk users. Most of the named plaintiffs weren’t riders: One had a son who allegedly lost eight teeth when a Lime rider crashed into him; another allegedly broke her left wrist tripping over three scooters in the sidewalk. An arthritic woman alleges that she was “unable to park her car in handicapped spaces” due to Bird or Lime scooters blocking the way. One plaintiff alleges that, while riding a scooter, the accelerator locked up, causing him to fall off.

They’re also suing the scooter rental companies for aiding and abetting assault. “If you walk around the streets of Santa Monica, you’ve had a scooter go by you on the sidewalk,” said Catherine Lerer, an attorney for McGee Lerer & Associates, which is representing the plaintiffs in L.A. “Even if it didn’t make contact with you, it’s a frightening thing. An assault is not [only] an actual touching, but a fear of an imminent offensive touching.”

A spokesperson for Lime told CityLab in an email that the company cannot discuss ongoing litigation, but that it “certainly did not aid and abet assault or engage in gross negligence.” In its response, Bird raised the issue of motor vehicle deaths: “Class action attorneys with a real interest in improving transportation safety should be focused on reducing the 40,000 deaths caused by cars every year in the U.S.,” a spokesperson told CityLab in an email.

A Lime user on the streets of Madrid, Spain. (Paul Hanna/CityLab)

So far, the number of personal injury cases involving scooters appears to be small, but it’s growing. Lerer says that more than 100 people have called her in the past year, while Zukerberg has heard from only half a dozen in the past six months. “Most attorneys in L.A. are not taking these cases,” said Lerer. “They’re worried about that user agreement.”

That’s why, to win a case, a legal team has to prove gross negligence. “You have to show that something that is not inherently dangerous about the activity happened and caused the accident,” said Philip Rosescu, a forensic engineer for Wexco, which reconstructs accidents for litigation purposes. He’s been working with Lerer to identify and recreate scooter glitches. “If you fall off the scooter and hit your head on the ground, that falls under the assumption of risk,” he said. “But if we can show that these things are malfunctioning, and unforeseeable things to the rider are happening,” there’s a case.

When riders sign Lime or Bird’s user agreement, though, they’re also signing an arbitration clause and a “waiver of class action rights.” That means riders give up their right to take cases to court, and instead must go through an arbitration proceeding, which is “basically the functional equivalent of a trial, but one that takes place in a conference room, not a court room,” according to Dan McGee, Lerer’s husband and partner.

These agreements won’t hold up in every state or every court, says Zukerberg: “Under different circumstances, those clauses or contracts are either valid or not, based on public policy decisions that jurisdictions make.” And if the plaintiff is a pedestrian (who has never signed any user agreement with any scooter company), or if the city itself sues for nuisance, the user contracts could be irrelevant. In the L.A. County case, the attorneys are first trying to prove that the user agreement is void in a traditional court room, then go from there. “There are still a lot of obstacles,” said McGee.

The other complication with winning scooter cases, though, is the lack of physical evidence. Take mine: I left the scooter on the street at the scene of the crash, and I’ll probably never see it again. “They don’t know to throw the scooter in the ambulance with them,” said Lerer.

That’s why she employs Rosescu.

When I called him, he was in the shop working on an original Bird model, the Xiaomi M365, which has since been swapped out for a Segway-Nano. The old ride had a rear disk brake operated by a cable, like the ones many bicycles use, meaning the harder you squeeze it, the quicker you’ll decelerate and stop. “Those were okay,” Rosescu said. “But the problem that we started seeing, primarily up in San Francisco, is people were just clipping these brake cables.” Unsuspecting riders would go bombing down the hills, and understandably, wipe out.

That’s part of the other dangerous dynamic emerging in the scooter space: Because they’re considered radical or just annoying by many, these vehicles have been the target of plenty of performative ire since their inception—a backlash that’s creating as many problems as the scooters themselves. Oakland’s Lake Merritt has been littered with at least 60 sunken scooters, according to Slate, allowing toxic batteries to seep into the ecosystem. Instagram accounts like Bird Graveyard delight in their destruction. (“If you can’t laugh at a ride-share scooter being lit on fire at a house party, that’s a problem with you,” the Bird Graveyard account administrators told Vice. “There’s nothing in the Constitution that says we all have to respect and love brands.”) Life on the streets is hard on these machines: Lime and Bird have both said that their scooters need to be completely replaced every 1 or 2 months.

“We hope that when people see available Birds, they are mindful of our friends and neighbors who rely on our vehicles to get to work on time or make it to their next appointment,” a spokesperson for Bird said of the vandalism. “We encourage people in communities to report incidents of vandalism to Birds, and irresponsible behavior on Birds, to local authorities and to the company. Bird investigates all reports of vandalism and takes appropriate measures, including working with law enforcement and removing people from our platform.” Xiaomi did not respond to a request for comment.

But the ambient unpopularity has been more than matched by an enthusiastic and growing user base. According to Bird pitch book data from The Information, the company facilitated 170,000 rides per week in the first week of May. And with frequent use—most need to withstand up to 10 trips a day—comes the need for frequent repairs. “Bird spent $1.72 per ride on charging costs, and another $0.51 per ride, on average, on repairs,” according to The Verge’s accounting. “So in May, Bird was pulling in about $602,500 in weekly revenue, offset by $86,700 in maintenance costs.”

Upgraded models have fixed some of the old ones’ problems. Bird’s new Segway models have electric brakes more similar to their accelerators, so no matter how hard you slam down with your thumb, you decelerate at the same rate—a feature that has both benefits (impossible to snip; harder to fling yourself over the handlebars) and drawbacks (you might not be able to stop short enough in an emergency). And this fall, they released a fleet of Bird Zeros in partnership with manufacturer Okai, with an extended battery range and a lower center of gravity.

But failures still occur. The most common one, Rosescu has observed, is that the accelerator sticks—when riders press it, it doesn’t spring back. That could be because on some models, scooter handles are a gummy material that traps the accelerator in the downward position. In other cases—like mine—the motor just cuts out and the wheels lock up.

While he focuses primarily on Bird because it pioneered the technology in California, most scooter companies are using vehicles made by the same handful of manufacturers: Bird, Lime, and Spin all work primarily with Segway models; Lyft’s scooter line is made by Xiaomi, like many of the first-gen Limes and Birds that have been left on the road; and Scoots are built by GenZe. Two thousand of Lime’s Segway-Ninebot models were taken off the market this fall, after reports of battery fires.

Lerer is also representing two of Bird’s independent contractor-mechanics, who are making claims against their former employer because of accidents that allegedly occurred on the job. “Both of them got on Birds and the brakes failed,” she said. Bird did not respond to a request for comment on these incidents.

A gig-economy repair crew

Each night, chargers for Lime and Bird spray across the streets, picking up their “bounty” and plugging it in, at home or at work. A lot of the “Bird hunters,” as the ones working for Bird call themselves, are teenagers. The application is easy, and the hours are flexible. To do the gig, they need a car and a certain taste for chasing down dead scooters, but that’s about it. For each revived scooter, they get between $5 and $20, depending on how hard it is to find.

Out there on the streets with them, now, are the mechanics, independent contractors who answer repair requests for Bird in all markets and Spin in most. Based on Reddit message boards reviewed by CityLab, many of the Bird mechanics are former chargers who decided to switch it up, looking for more consistent pay—$15 for a fix, and $5 for a return to the warehouse. They, too, scour the cities, but they’re hunting broken Birds. And they, too, can enter the workforce with little training, even though doing their job wrong has higher stakes.

“Remember, riders get on these scooters with the expectation that they are safe and well maintained. If someone hops on and takes off without realizing the brakes aren’t working, it can be disastrous,” reads a post from one Bird mechanic, Chris T., on the RideShareGuy Blog. “There are [sic] lives are quite literally in your hands.”

The Bird mechanic application is one web page long. It asks whether you have access to a vehicle, a garage, or tools; applicants are also prompted to give their “mechanic experience”—0-2 years, 2-5, or 5-plus—and to explain it briefly. (I submitted an application, admitting to having no car, tools, nor experience, and haven’t yet heard back.)

Joey, a mechanic in Phoenix who asked not to be identified by his real name to preserve his job, says that he was accepted quickly, though he had 0-2 years of experience, and wrote only that he had fixed bikes and brakes in the past. “There was no follow up,” he told me in a phone call. The blogger Chris, however, wrote that he did speak briefly with a Bird rep before getting the job. (According to a Bird training video uploaded to YouTube, each mechanic must pass two quick lessons and take a phone call from the team before getting accepted.) Joey had his own tools, but for those that don’t, Bird will send them a “welcome kit,” which Chris writes includes “a few tools (Allen wrenches, tire lever, air pump) and replacement parts (inner tubes, tires, stickers).”

After that, Joey was told to watch detailed training videos and read a two-page training document that details the “2-Minute Inspection” mechanics are meant to complete when they encounter a damaged Bird. They’re told to check the “Beak,” (Bird-speak for the “Head,” or handlebars), the “Neck” (the long front tube that supports the Head), the front hub, the chassis or scooter deck, and the rear hub—tightening loose screws, unbending the fender if it’s askew, making sure the throttle snaps smoothly, the grips aren’t sliding, and the power outlet isn’t damaged.

The comprehensive health check is necessary, these mechanics say, because, while scooters are first reported as damaged by chargers or riders in a help ticket, the details of that ticket aren’t passed to the mechanics. Mechanics, therefore, have to figure out for themselves what needs fixing. “If a rider reported a brake issue, then Bird marks [that] on its map that its mechanics have access to,” Lerer said. “But … the mechanic is sent out without knowing what the issue is.” Bird did not contest this claim when asked for comment, and several Bird charger and mechanic message boards confirmed it.These are not complex machines. Most mechanical problems with Birds can be easily found and addressed during the two-minute inventory, Joey says. But sometimes, the visual assessment or the pat-down isn’t enough. They have to try the product themselves.

“There have been times when I get to the scooter, I do the two-minute check and I can’t figure out why it was marked as repair and I’ll get on it and go,” Joey said. “There was one time where the throttle was struck.” It was an intermittent problem, so it hadn’t shown up in the first check. “Luckily, I only went a short distance, and didn’t take it up to full speed,” he said. “But I was like, oh, that’s tricky.”

“We talk way too much about trust in technologies. And not nearly enough about the trustworthiness of the companies themselves.”

The two mechanics Lerer represents are seeking compensation for injuries related to this testing process, alleging that hopped on broken scooters that they didn’t know had busted brakes. Another Bird mechanic speaking on the condition of anonymity told me on Reddit that he has never gotten hurt this way on the job. “I’ve never heard of anyone being hurt while doing this,” he wrote. “I think you would have to be pretty careless for that to happen.”

There’s another concern Lerer brings up about the company’s reporting system—the difficulty in tracking breakdowns in a timely way. After my crash, I didn’t have a chance to report my malfunction in time, so no mechanic knew to swoop in. “Bird’s relying on its customers to do its job,” Lerer said. “That’s really a scary way to do business in my opinion.”

A Bird spokesperson did not address issues in the reporting system directly, but wrote: “We strongly recommend reporting any damaged scooters or incidents that Bird scooters are involved in, as we have a support team dedicated to safety that is available around the clock to address questions and reports we receive.”

There’s also an incentive for these mechanics to fix fast, and by any means necessary. But because of the growth of scooter usage—and the sheer scale of the damage they’re taking, “the parts are often unavailable and on backorder,” says Lerer. “If the mechanic needs a part and it’s not available from Bird, he takes it off another Bird.”

Joey confirms this. “It is in the mechanic’s best interest to be able to repair a scooter as it is more valuable to the mechanic,” he wrote—it’s the difference between making the $5 for a simple return, or $15. “This creates a situation where when you have a scooter that is not able to be repaired that you will want to salvage the parts you can to repair other scooters,” Joey wrote. It’s up to fleet commanders and chargers to ensure that those picked-over scooters aren’t then released into the streets.

To confirm that repairs are indeed made, mechanics are told to take before and after photographs of the Birds, and the company says it “measures post-repair metrics,” mostly by looking at future average ratings and complaints filed by the next passenger. If mechanics can’t successfully mend what’s wrong, they’re told to contact support for a more highly-trained fixer.

The problem here seems obvious: If workers tasked with fixing products aren’t adequately trained, more breakdowns (and, potentially, more lawsuits) would be likely. But Bird’s choice to classify its repair team as independent contractors could also be a shrewd one, legally.

There are exceptions to that doctrine—if ICs are doing “inherently dangerous” things, for example—so the argument may not hold up in court (or an arbitration room). It also might not ever be made. Bird’s user agreement, if recognized by judges, does include contractors in their liability evasion: When they hop on the machine, “Rider agrees to fully release, indemnify, and hold harmless Bird and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality.” And companies could still be deemed negligent for gig hiring in the first place.

“We talk way too much about trust in technologies,” says Smith. “And not nearly enough about the trustworthiness of the companies themselves.”

Still, the opportunities for responsibility-punting is why the gig economy works for companies—and where it can break down for workers and consumers. Bird is simply connecting people that want to ride potentially dangerous little vehicles with the vehicles themselves, and connecting people in search of flexible work with those same vehicles to fix. It’s on riders to commit to wearing a helmet and avoid yammering on their phones; it’s on chargers to report defective scooters; it’s on mechanics to fix them properly. What, if anything, is on the company? Bird declined to comment.

“Was thinking about signing up to be a bird mechanic,” one Reddit commenter wrote. “My question is if a mechanic fixed the bird but then it somehow broke while somebody was riding it would the mechanic then be liable for their injuries?”

No one had an answer.

Toward a safer scooter future

Lerer’s office is in Santa Monica, where you’re unlikely to walk very far before bumping into a scooter. In the spirit of knowing-thine-enemy, she decided to try one once—equipped with a sturdy helmet and an assistant to spot her. She went barely a block before dismounting, shaken, she says.

Still, “I don’t hate the idea,” Lerer says. “I think it’s a great idea if it gets people out of their cars.”

And that’s the thing. As wobbly as they may be, as vehicles and as businesses, shared scooters could be part of the answer to a host of urban problems: vehicle-related injuries, traffic congestion, air pollution. They connect people to public transit, help build a bigger constituency for protected bike infrastructure, and are helping to gnaw away at urban car usage. When I rent a Bird, I’m often choosing that over riding in an Uber. (No wonder the ride-hailing giant is said to be eyeing a scooter company acquisition.)

“It isn’t just that new technologies face laws. New technologies actually change laws.”

So protecting riders—and other users of the urban roads and sidewalks that scooters ply—doesn’t have to mean a blanket ban on scooters. Instead, mobility companies, insurance companies, and cities can continue adapt to the new devices with the same sorts of safety regulations introduced for motor vehicles and pedestrians and bikers.

San Francisco’s new permitting resolution, for example, requires that any scooter companies operating in the city have “adequate insurance as determined by the City’s Risk Manager.” But in other cities, and indeed, in San Francisco itself, it’s not clear which standard insurance plans cover scooter accidents. Are they considered car insurance-eligible motor vehicles, or are they another conveyance entirely, which might be covered by some homeowners’ policies?

Bird’s user agreement reminds riders (at least, those who read the fine print) that the only way to know is to check with their own automative insurance company or agent. A spokesperson for Progressive said that the company does not cover e-scooters; Geico did not respond to a request for comment.

Lime’s user agreement, meanwhile, indicates that it will “carry all necessary insurance associated with the Vehicles as required by applicable law.” If this sounds vague, that’s because it is. But Lindsey Haswell, Lime’s general counsel, says Lime’s is one of the most comprehensive plans out there. “Lime pioneered insurance on scooters,” she said in an email. “It offers at least $1 million in liability coverage for any incident, which guarantees any rider who has an accident on our platform can get help.”

To fill the gaps, Zukerberg is advocating for a comprehensive new no-fault insurance policy written into all user agreements, which would cover riders’ and pedestrians’ medical bills.

But building a safer scooter doesn’t just involve boosting insurance coverage (or even literally building a safer scooter): It’s also about cities making space for the things. That means expanding the reach of bike lanes, installing corrals for idle scooters in the sidewalks, fixing potholes, and communicating to pissed-off vandals that the devices are allowed to be here, too. “It isn’t just that new technologies face laws,” said Smith. “New technologies actually change laws.”

Part of moving the needle on political—and corporate—will to change them, he says, may be “helping people understand the risks of the status quo.”

My Bird crash left me with one cut on my left hand, two on my left knee, and a bit of broken skin on my right shin, right under the scar I got falling off a sturdy, old-fashioned bike near the Lincoln Memorial last spring.I ached for a week or so. The cuts and bruises are healing now. And I still ride scooters—not while on the phone, still un-helmeted. How else am I supposed to get home?